Banging heads over helmets

Milwaukee Journal Sentinel
August 27, 2003
By DENNIS CHAPTMAN

Bill would block juries from letting use of helmets affect lawsuit damages

Madison – Wisconsin juries could not reduce damage awards in cases where motorcyclists are hurt or killed while not wearing helmets, under legislation backed by bikers at a public hearing Tuesday.

“Society says helmets must be safe and that motorcycles must be dangerous, and that’s not true,” Wisconsin Rapids motorcyclist Kirk “Hard Tail” Willard told the Senate Judiciary, Corrections and Privacy Committee.

The measure, which would also apply to snowmobilers and riders of all-terrain vehicles, is a response to a 2002 state Supreme Court ruling that held that the failure of an ATV rider to wear a helmet could be considered by a jury as a basis for reducing damages.

Just as Milwaukee’s celebration of Harley-Davidson’s 100th Anniversary prepares to kick into high gear, bikers supporting the proposal squared off against the insurance industry.

Milwaukee personal injury lawyer Michael Hupy, who said he has represented hundreds of bikers in accident cases, told the panel that the Supreme Court ruling puts motorcyclists in a perilous legal position if they are injured and their case goes to court.


Under the high court ruling, juries can weigh whether a motorcyclist’s failure to wear a helmet played a role in their injury, and they can reduce damage awards by any amount.

“If there is no law requiring a helmet, there shouldn’t be a penalty for not wearing a helmet,” Hupy said.

The state limits the reduction of damage awards to 15% in car crash cases in which occupants were not wearing seat belts, Hupy said.

The bill, sponsored by Sen. Dave Zien (R-Eau Claire), would prevent non-use of helmets from being introduced ad evidence in court and block reduction of damage awards for not wearing helmets.

Zien’s bill would not apply to those now required by law to wear a helmet, including those with instruction permits and riders younger than 18.

The legislation also includes a provision that would allow bikers to introduce evidence of helmet use when they sue helmet manufacturers for product defects that cause injury.

Eric Englund, lobbyist for the Wisconsin Insurance Alliance, said the vehicle insurers’ group opposes the legislation because it would strip juries of their ability to weigh the facts in motorcycle injury cases.

“Heaven forbid that a jury in Wisconsin doesn’t get the choice to take a look and say, ‘Geez, should he or she have been wearing a helmet? And shouldn’t he or she bear some responsibility?’” he said.

In the late 1960s and early 1970s, most states adopted mandatory motorcycle helmet laws under pressure from the federal government. Wisconsin repealed its law in 1978.

Personal injury lawyer Joe Weigel, who has ridden motorcycles for 45 years, told the panel that the insurance industry has the resources to get damage awards reduced.

Zien, himself an avid biker, said he believes helmets can cause injuries by limiting riders’ ability to see, hear and respond to traffic situations.

The bill was not voted on.

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